Archive for the ‘Legal’ Category
Medical malpractice is also referred to as medical negligence, and involves the negligent or irresponsible medical treatment of a doctor, nurse or other medical practitioner that results in injury or death of a patient in their care. The results of such malpractice can also result in economic damage to a patient. The substandard medical care that a health care professional provides to his or her patients must be considered to be in violation of normal medical practices in order to be deemed malpractice.
Some of the more common examples of medical malpractice include the following:
- Failing to properly diagnose a patient with a specific ailment
- Misdiagnosing a disease or condition
- Failing to provide proper treatment for a specific medical condition or illness
- Unnecessary delay in providing treatment for an illness or medical condition
Medical malpractice laws govern the care that medical practitioners provide to their patients, and deal with retribution and consequences that are dealt to those who perform their medical duties at a substandard level, resulting in injury to a patient. It is important to note that each state may have medical malpractice laws that vary significantly.
Factors That Dictate When Malpractice Has Occurred
There are generally three factors that must exist in order to prove that a health care practitioner is guilty of medical malpractice:
- Direct causal link
Liability in the Form of Informed Consent
A health care practitioner may be liable if their inappropriate actions or failure to act results in damages to a patient. Liability describes a form of obligation or responsibility that a medical practitioner has with their patients. Legal liability on the part of a medical professional can involve a medical treatment or procedure that is conducted on a patient without obtaining informed consent from the patient. If a patient does not provide informed consent for their health care practitioner to perform a specific treatment or procedure, which results in some form of physical or economic damage, that medical professional can be held liable for these damages.
Regardless if the procedure is performed properly and with great accuracy, if no prior informed consent was provided by the patient beforehand, medical liability on behalf of the health care practitioner may be present.
An example of this type of informed consent would be a doctor intending on performing a specific type of surgery to address an ailment on a patient. If the doctor does not fully explain the risks associated with the surgery, such as the fact that there is a 50/50 chance of the patient suffering paralysis as a direct result of the procedure, the doctor can be held liable if paralysis does in fact occur as a result of the surgery.
Since the patient did not receive all the pertinent information related to the surgery, he or she was unable to provide accurate informed consent or be able to make an informed decision on whether or not to allow the procedure to be performed. Even if the surgery or procedure is performed perfectly, the doctor can still be liable based on the fact that informed consent was not given based on all the available information that was not provided to the patient.
Injury or other damages must be a direct result of an inappropriate act or absence of a necessary act on the part of the medical professional on the patient in order for medical malpractice to exist. If the patient suffers no harm or damages as a result of the doctor’s conduct or error, the patient will be unable to recover any damages under medical malpractice law.
Damages alone are not enough to bring a medical malpractice charge against a medical practitioner. For example, there are certain inherent risks associated with specific surgeries. If the patient was fully informed of all the risks, gave informed consent prior to the surgery, and the doctor performed the surgery with the highest degree of accuracy, any physical damages suffered as a result of that surgery will most likely not be considered medical malpractice.
Malpractice cases and suits can be challenging and expensive to bring forth. Litigations and cases brought against a doctor or a medical facility or organization require the necessity to seek out legal advice from experts. An attorney who specializes in medical malpractice lawsuits is the best source to obtain legal advice from in these cases, and to help bring forth a malpractice suit should the injured patient decide to go that route. These lawyers have the necessary resources to help develop a patient’s case and take the case to trial to recover any damages suffered as a result of a medical practitioner’s errors and omissions.
Medical law governs both medical care practitioners, as well as patients that are under their care. It helps to protect both the responsibilities and rights of both of these parties. Although there are a wide variety of subjects that are covered under the umbrella of medical law, there are essentially three main categories or branches of medical law:
- Criminal Law
- Medical Negligence
These three branches of medical law help to both protect a medical practitioner if he or she is being accused of breaching medical laws even though they are innocent, and also to help bring legal action against those practitioners who acted unlawfully toward a patient under his or her care.
Under medical confidentiality law, health care practitioners are forbidden to disclose any sensitive or private medical information about a patient in his or her care to other people. Not only is it ethically moral to maintain a level of confidence pertaining to medical information about a patient, but it is also legally required. Doctors and other health care practitioners who reveal medical information about a patient without their consent are in breach of medical law.
There are certain exceptions to this confidentiality law, including the following:
- Getting permission from the patient to divulge the medical information
- Transferring medical records to another medical facility
- Divulging pertinent medical information in order to prevent injury or fatality
There are many branches of confidentiality laws that exist, such as legal confidentiality between a lawyer and their client, and confidentiality between a business owner and its employees. Medical confidentiality is one of the most familiar and well-known type of legal confidentiality that exists under the law. Although some types of legal confidentiality must be established and agreed upon through a binding contract or agreement, medical confidentiality requires no such written agreement. Rather, it is assumed that any information that becomes privy to a doctor or other health care practitioner about a patient will be kept in the strictest confidentiality.
Most health care professionals consider medical confidentiality to be one of the most important aspects of their profession. It is an aspect of their job that most of these professionals hold in the highest regard, and as one of moral and ethical obligation. Facilitating full honesty and openness between a patient and their doctor is essential to help the doctor provide the best care for the patient.
The section of medical law that covers criminal law involves dealing with health care professionals that may be guilty of a criminal act against a patient. For example, doctor’s who perform a medical procedure without a patient’s consent, or against their will, are considered under law to be criminally liable.
The criminal branch of medical law deals with the criminal code, which means that any medical practitioner that has committed a criminal offense in the medical sense can be punished under the law as a criminal. This includes being subject to court proceedings where punishment can include jail time. If a prosecution team can prove beyond a reasonable doubt that a doctor or nurse committed a medical crime against a patient or anyone under their medical care, they can be held liable and punished as a criminal under US law.
Medical negligence is also referred to as medical malpractice, and involves the negligent acts of a doctor or nurse that cause injury or death to a patient under their care. This can also include an omission by the medical practitioner or a medical facility that causes harm to a patient. Patients who are subject to such medical negligence or malpractice have recourse under the law to take legal action against the health care practitioner or medical facility. These types of cases are generally part of the personal injury law branch of medical law.
People who are in need of medical care have the right to be given adequate medical care by a health care professional or a medical facility. When these standards are not met, medical negligence has taken place. This can happen as a result of an error or irresponsible act made by the health care practitioner.
Whether the medical professional displayed incompetent medical skills or poor patient care is the cause of injury or death to the patient, it all still constitutes medical negligence. Anyone who is medically responsible for the care of a patient can be held liable under the law for medical negligence. Medical facilities and hospitals can also be held liable in these situations, and can also be charged under the law.
Medical law is a caveat that encompasses the protection of both patients and medical professionals. Patients are protected under medical law against medical professionals who cause some form of harm, injury or death to a patient, as well as breaching a level of confidentiality. Medical law also protects medical professionals who have acted responsibly when caring for a patient, despite being wrongly accused by a patient for medical malpractice or other breach of the law.
Mental health law involves assessing a person’s mental capacity and competence, and determining whether or not the person can be deemed mentally incompetent or handicapped. Under mental health law, both criminal and civil suits can be covered and addressed. Different states have their own measuring tools and assessment procedures that they use to determine a person’s mental competence and capacity, and which rights are able to be removed from the person if they are classified as mentally incompetent.
Mental Health Law in the Civil Arena
Civilly speaking, mental health law can be used to help establish whether or not an individual is mentally competent enough to engage in a contract that is legally binding. These types of contracts can include:
- Marriage contracts
- Divorce contracts
- Adoption contracts
- Purchase contracts
- Real estate contracts
- Financial contracts
Any type of contract that is used to solidify an action is a contract that mentally incompetent people – under mental health law – can be prohibited from entering into, unless approved by a mental health practitioner or legal guardian of the individual.
Any assets or finances owned by a person who is deemed mentally incompetent is protected under mental health law. Maintaining control over their finances or valuables can be dangerous, therefore a separate person or entity is usually deemed responsible for the valuables and assets of the mentally incapacitated individual. Most of the time these finances and other assets are placed in a trust fund, and a trustee is generally responsible for handling this trust fund. Generally speaking, these assets in the trust funds are to be used to help pay for any type of care or need that the individual requires in order to live a comfortable life. For example, bills can be paid with this trust fund money, or regular allowances can be provided to the individual to cover any expenses.
Mental Health Law in the Criminal Arena
Mental health law is used in criminal cases to help establish if a person that has been charged with a criminal offense is mentally capable to stand trial for the crime. Many people who have committed crimes have been determined to be mentally incompetent, which resulted in the crime being committed. Under mental health law, tests are conducted on the individual to determine if the person in question is capable of understanding the consequences of the crime he or she committed, as well as the role he or she played in the crime.
Mental health law will also help to determine if the person who committed a crime is able to actively participate in his or her defense, and understand the process of court proceedings. Each state will have its own set of rules and methods as to what constitutes a person’s inability to understand court proceedings and the person’s role in the crime.
Mental Health Law in the Psychiatric Commitment Arena
Mental health law can also help to dictate whether a person who is deemed mentally incompetent can be involuntarily committed to a psychiatric institution. A person must be classified as one who poses a danger to themselves and to the public before having their rights stripped away and committing them to a mental health facility.
Certain states have laws that allow an individual to draft up a contract or directive for any future care and actions on the individual should they be deemed mentally incompetent at a future date. For example, a person may draft up an advance directive stating what type of psychiatric facility they’d like to be in, who should care for their estate or trust fund, or how they wish to have their property dispersed.
Mental health law is a caveat that helps to protect both a mentally incompetent person, as well as the public. It is a law that first helps to determine the mental capacity of a person before they are subject to criminal punishment, or enter into a legally binding contract. Mental health law will also protect a mentally incapacitated person’s finances and assets, in situations where others attempt to take advantage of the mentally incompetent individual. Overall, mental health law was put in place to look out for the best interests of both the individual and the society in which he or she lives.